Question:

This request includes two distinct questions. First, the requestor has asked whether certain emails (copies provided to the Commission by requestor) that were sent or received by the requestor violate the New Castle County Ethics Code. The requestor has asked the Commission to “review these emails and provide an Advisory Opinion on whether any of them indicate a violation of the County Ethics Code. “

Second, the requestor has asked the Commission for an opinion on whether his personal relationship with a person who is a lobbyist by profession,1 in itself, creates a conflict of interest or an appearance of impropriety under the Ethics Code, given the requestor’s role in County government.

Conclusion:

As to the first question, the request is not within the Commission’s jurisdiction as the subject matter upon which the Commission is being asked to opine has already taken place and exists in the past (as shown by the emails provided to the Commission by the requestor.) The Commission issues advisory opinions on questions involving proposed conduct, not past conduct. Accordingly, it would be incorrect for the Commission to respond to the requestor’s first question, as posed, as the question falls outside of the jurisdictional scope of an advisory opinion.

The requestor’s second request to the Commission is also problematic. The requestor has asked the Commission “whether my personal relationship with [Mr. A], in itself, creates a conflict of interest or appearance of impropriety. “ Issuing an advisory opinion based on mere speculation would not serve the public good nor would it advance the Ethics Code.

Facts:

Many of the emails of this senior County official requestor from the past several years were released through a FOIA request recently released by the County Office of Law to the members of County Council.2 As stated by the requestor in his request to the Commission for an advisory opinion, “I have reviewed the emails provided by the County Solicitor to County Council. Although there are several private topics in these emails which I prefer not to be seen by outsiders, I do not see any emails which indicate impropriety on my part.”

The requestor provided the Commission with approximately 300 pages of the requestor’s County emails which cover many different topics, and a span of many years. None of the submitted emails were related to the requestor’s County business, and some of them involve Mr. A. While the submitted emails demonstrate a friendly relationship between the requestor and Mr. A, the emails do not form a basis upon which the Commission can issue an Advisory Opinion.

Analysis:

The Advisory Opinions issued by the Commission review the propriety of action that has not yet been taken. The actions (in the emails) that the requestor has asked the Commission to use as the basis of its opinion includes past acts, only. As for the first question from the requestor for an advisory opinion, the Commission was asked too late because the activity has already taken place. Typically, the review by the Commission of past acts occurs when a complaint has been filed with the Commission.

For the second question, the Commission does not have enough facts to determine whether the relationship between the requestor and Mr. A creates a conflict of interest or an appearance of impropriety on the part of the requestor with respect to acts that may occur in the future, and the Commission will not issue an advisory opinion based on speculation. The emails refer to events that have occurred in the past and are insufficient factually to support the question posed to the Commission by the requestor. The requestor may re-frame the question and file a revised request with the Commission and such request should include a question related to a specific prospective act.

Finding:

The conduct described by the requestor was either in the past, or was too speculative for the Commission to issue an Advisory Opinion on the questions posed. The requestor has leave to re-file.

In rendering this advisory opinion, this Commission has applied the New Castle County Ethics Code, which establishes the minimum level of ethical conduct required of County officials and employees.

BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 10TH DAY OF JUNE, 2015.

_____________________________________

Johanna P. Bishop, Chairperson

New Castle County Ethics Commission

Decision: Unanimous

Footnotes:

1The Commission will refer to this person as “Mr. A.”

2Per County policy, the County retains, forever, every email sent from, and received by, a user with a County email address, e.g., JJones@nccde.org.